CYIL vol. 12 (2021)

CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… inviolabilities, which, again, recalls the functional necessity element that excludes benefits of individuals from the very rationale of immunities. To support such a presumption, one may rely on many cases reported in diplomatic practice where the inviolability of premises was at stake, and there is a prevailing tendency not to infringe on this privilege, even if unexpected events such as violence from local para-military groups or terrorists attacks occur. 41 Also the ICJ unanimously confirmed this approach in Case concerning Armed Activities on the Territory of the Congo , where attacks on and occupation of the Ugandan Embassy in Kinshasa including mistreatment of the mission’s staff were a subject-matter of the Uganda’s counter-claim. 42 3.3 Other applicable rules of international law When interpreting the Vienna Convention, it is not only the history and meaning of its provisions followed by subsequent practice that has to be taken into account. As all the other international norms, whether sourced in a treaty or a custom, the Vienna Convention does not exist in a legal vacuum and the correlation with other norms is reasonably expectable so far as a State, acting through its authorities and officials, complies with international obligations cross-cutting various aspects of its behaviour. Moreover, it may be argued, that rules governing diplomatic privileges and immunities in particular, are part of general international law applicable to all States and opposable erga omnes . Thus, it is quite logical, but also supported by recognized practice in interpretation of treaties 43 , that any relevant rules of international law applicable between parties are to be considered together with the context of the treaty. Here, one may rise an argument going contrary, based on the reference to the well- known labelling by the ICJ of the diplomatic corpus of law as being a self-contained regime. Indeed, the self-contained nature of diplomatic rules implies that no other set of rules is relevant nor applicable and all situations can easily be covered and solved by the respective norms to be found within the diplomatic law solely. However, the above-cited part of the ICJ judgment has to be read in terms of specific circumstances of that case where a legitimacy of countermeasures hindering the sacred inviolability of diplomatic premises was at stake. The Court’s reasoning went to explain that the body of diplomatic rules itself contains sufficient tools and mechanisms how to react to alleged breaches, creating thus nothing less or more than a lex specialis body of rules that have to be applied with precedence over, or instead of, ordinary rules of general law regulating the permissible actions against other State’s breaches. It did not say at all that State responsibility would not arise nor that other international norms, such as general rules on wrongful acts should be completely disregarded. It is argued quite contrary, as noticed above, that the legal vacuum of the Vienna Convention is neither desirable nor possible for States being involved in diversity of international relations. This assumption is incidentally reinforced by the jurisdictional clause embodied in one of the two protocols to the Vienna Convention. Should the States have called the Court to adjudicate disputes related to the Convention without acknowledging that it would be also 41 See cases widely cited in DENZA, 2008, p. 161 ff. Recently, a case reported on controversial approach by British police intruising into Bahraini Embassy in London was discussed by Miles Jackson, Inviolability and the Protest at the Bahraini Embassy , in EJIL:Talk! August 9, 2019, available at protest-at-the-bahraini-embassy/ [27-05-2021]. 42 ICJ, Case Concerning Aemed Activities on the Territory of the Congo (DRC v Uganda) , ICJ Reports 2005, Judgment of 19 December 2005, paras. 340-342. 43 See Article 31 (3) (c) of the Vienna Convention on the Law of Treaties, 1969, commentary.


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